Pro bono costs are just like ordinary legal costs, but are available where a party received free of charge legal representation provided by a solicitor, barrister or advocate in England Wales, Scotland or Northern Ireland.
If a civil case is won with pro bono help, pro bono costs can be ordered by the court or tribunal, or included in settlements.
Pro bono costs cover any period when free of charge representation was provided, and the amount is based on what a paying client would recover.
Unlike ordinary costs, pro bono costs are, by statute, payable to the prescribed charity, the Access to Justice Foundation, which distributes the money to agencies and projects that give free legal help to those in need.
Pro bono costs help level the playing field, by ensuring that there are equal adverse costs risks for all parties, even when facing a pro bono assisted party. This can help encourage reasonable litigation conduct and settlement.
Successful pro bono costs applications provide vital funding for future free legal help.
S.194A of the Legal Services Act 2007 came into force on 28 June 2022*, enabling UK tribunals to award pro bono costs. This mirrored the existing s. 194 of the 2007 Act which provides for pro bono costs in the civil courts of England and Wales.
As a result, Pro bono costs are available in proceedings before the First-tier Tribunal, the Upper Tribunal, the employment tribunal, the Employment Appeal Tribunal, and the Competition Appeal Tribunal.
The key condition is that the tribunal would have had the power to award ordinary costs, had the representation been provided on a paid basis. For example, for unreasonable conduct. (Accordingly pro bono costs are not available in the Social Entitlement and War Pensions and Armed Forces Compensation chambers of the First Tier Tribunal).